Judge nixes part of lawsuit against county

February 12, 2014

PHILIPPI - A federal judge has granted, in part, the Barbour County Commission's motion to dismiss charges brought against it in a federal civil lawsuit that names the commission and Sheriff John Hawkins as codefendants.

In a Dec. 16, 2013, ruling, Chief U.S. District Judge John Preston Bailey ordered that five counts in a 15-count complaint filed by 20-year-old Brittany Mae Keene, of Moatsville, be dismissed insofar as they pertain to the commission.

In Keene's original complaint, her attorneys, Paul J. Harris and Shawn L. Fluharty of the Wheeling law firm Harris Law Office, claim that Hawkins sexually assaulted Keene "in late July/early August" of 2011 and then threatened to kill her if she told anyone. The complaint, which was filed at the Elkins office of the U.S. District Court for the Northern District of West Virginia, alleges the sheriff sexually assaulted five other unnamed women, referenced as Females No. 1-5.

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Hawkins

According to Bailey's order, the following charges against the commission have been dismissed: count 1, unlawful arrest; count 2, excessive force; count 3, civil conspiracy; count 4, outrage and intentional infliction of emotional distress; and count 12, abuse of process.

The order only applies to charges brought against the commission and does not address the allegations lodged against Hawkins. It is in response to a motion to dismiss in lieu of answer, filed Aug. 9, 2013, by the commission's attorney, Keith Gamble of the Morgantown law firm Pullin, Fowler, Flanagan, Brown & Poe.

According to the order, count 1 (unlawful arrest) and count 2 (excessive force) are being dismissed because the commission qualifies as a political subdivision, and according to the West Virginia Tort Claims Act, political subdivisions "cannot be held liable for intentional claims," including unlawful arrest and excessive force.

Bailey's order also reveals that Keene's attorneys have admitted in a prior filing that only five counts contained in the 15-count complaint - counts 1, 2, 6 (negligent hiring and retention), 8 (negligent training and supervision) and 10 (deliberate indifference) - apply to the commission.

Because count 3 (civil conspiracy) and count 4 (outrage and intentional infliction of emotional distress) admittedly do not apply to the commission, Bailey orders that they be dismissed. Bailey reasons that the commission has the grounds, or "standing," to move for dismissal because Keene's attorneys refer to "the County Defendant" in reference to those counts.

Count 12 (abuse of process) is likewise being dismissed because it does not apply to the commission by Keene's attorneys' own admission, despite the fact that her attorneys refer to "defendants" in the plural form in discussing count 12, according to Bailey's order.

Bailey, however, denies the commission's motion to dismiss seven counts that apply solely to Hawkins, arguing that the commission does not have any "standing" to request a dismissal since the commission is not named or referenced in the charges. Those seven charges include count 5 (battery), count 7 (false imprisonment), count 9 (assault), count 11 (malicious prosecution), count 13 (sexual assault), count 14 (furnishing alcohol to a minor) and count 15 (dissemination of a nude photo of a minor).

"The counts make no mention of the County Defendant as a party and make no allegations directed toward the County," Bailey writes. "Therefore, to the extent that the County Defendant moves for the dismissal of these counts the motion is denied."

Bailey also denies the commission's motion to dismiss count 6 (negligent hiring and retention) and count 8 (negligent training and supervision). The judge notes that county commissions have the ability to petition for the impeachment and removal of an elected sheriff for "official misconduct, malfeasance in office, incompetence, neglect of duty or gross immorality" according to state code.

The judge argues that if it's true Hawkins sexually harassed or threatened female victims in five other instances, as Keene alleges, the allegations made by Keene "raise a right to relief above the speculative level."

"The plaintiff (Keene) has presented a genuine issue of material fact as to whether the County Defendant (county commission) should have been aware that defendant Hawkins was a risk to the community and should have reasonably foreseen the risk caused by retaining defendant Hawkins," Bailey writes.

Bailey also says it's worth exploring whether the commission "had a duty to train or supervise the elected sheriff in the management of his department, whether it breached that duty, and whether breach caused (Keene's) injuries."

Finally, the judge also denies the commission's motion to dismiss count 10, deliberate indifference, maintaining that it has been "sufficiently pled."

Hawkins has repeatedly denied Keene's allegations since they were made in July 2013, and in an August 2013 response filed by his attorney, Harry A. Smith III from the law firm McNeer, Highland, McMunn and Varner, asks that Keene's complaint be dismissed and Hawkins be awarded court costs.

Bailey has not entered an order in response to Hawkins' motion to dismiss, according to case filings available through the Public Access to Court Electronic Records system.

Despite rumors that Hawkins is no longer acting as sheriff in Barbour County, he told The Inter-Mountain he was "still here" in a telephone interview Tuesday.